Toledo attorney leading effort to amend law that keeps disabled from suing airlines

More than a year has passed since a US Airways official told Johnnie Tuitel he was too disabled to fly.

He said recovering from the humiliation took months. The motivational speaker — who has racked up half a million miles traveling across North America — balanced depression with countless media interviews. Speaking engagements dwindled because venues assumed he wouldn’t be able to make the trip.

Simultaneously, he took calls from at least 70 families who had similar stories. A woman with a disability missed a job interview when officials took her off the flight from Wisconsin to Texas. A boy with a terminal blood disorder missed his last vacation because staff removed him from the plane. A family heard a pilot refer to their daughter as “a retard,” complaining that he didn’t want her on board.

Tuitel wondered, though, why he had not heard from a lawyer. When he met Toledo-based attorney Mark Skeldon he learned why. Tuitel can’t sue.

The law

The Air Carrier Access Act, passed by Congress in 1986, was designed to protect people with disabilities. The law asserts, among other things, that carriers may not refuse to fly people based on disabilities and may not limit the number of people with disabilities on board.

Airlines may refuse to fly someone if officials deem the person a health or safety risk, or if the needs of that individual violate the Federal Aviation Administration or foreign government safety rules. For example, a quadriplegic who could not evacuate the plane in case of emergency might be considered a safety risk. These assessments are made on an individual basis, said Steve Lott, spokesperson for Airlines for America. The organization often speaks on behalf of a number of airlines, including Delta.

From Left, Laura Folsom, Johnnie Tuitel and Mark Skeldon.

People with disabilities can file a complaint with the Department of Transportation if they feel discriminated against. The department reviews the complaints, often rolls them in with others and imposes a fine on the airline if officials determine the company violated the law. The money goes to the U.S. Department of the Treasury, said Bill Mosley, a spokesperson with the department.

But the law says nothing about the right to take private cause of action – or, to sue. Although there is no clause prohibiting private legal action, the last three district court rulings have concurred that the omission means individuals do not have that right.

The 11th Circuit Court ruled in a 2002 case that judges ought not imply that the right exists without a definitive mention in legislation.

“Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute,” the court decision reads.

Precedent makes it difficult for other lower courts to rule differently. And the U.S. Supreme Court would likely not take the case until another district court disagreed, Skeldon said.

The Americans with Disabilities Act (ADA) was revised in 2009 to include a clause about private cause of action, said Nathan Facey, Congresswoman Marcy Kaptur’s deputy chief of staff. But Tuitel can’t invoke the ADA, because the Air Carriers Access Act usurps that on airplanes.

It’s a policy problem that allows people with disabilities to fall through the cracks, Tuitel said.

“It bothers me that there is a law in which its purpose is to protect people with disabilities and it doesn’t,” Skeldon said. “Not as well as it should.”

The fight

If Skeldon, Tuitel and his girlfriend Laura Folsom have anything to do about it — the law eventually will. Skeldon and Tuitel met in September and have been busy planting a grassroots campaign to convince legislators to put a clause about private cause of action on the books. Folsom and Tuitel are working on the blueprints for a nonprofit called the Disabilities Leadership Network that would promote their cause.

The clause’s absence has forced disenfranchised airline clients to get crafty. Seventeen people with disabilities banded together against 10 airlines in 2004. de La O, Marko, Magolnick & Leyton, the Florida-based law firm representing the group sued the airlines under the Rehabilitation Act of 1973, which prohibits discrimination based on disability within programs that use federal dollars.

In 2001, airlines received a total of $15 billion in bailout grants and loan guarantees. This, the lawyers argued, made the airline industry a program that uses federal funding, said Charles Ferguson, an attorney in the law office.

But that didn’t work, either. The District Court of Southern Florida ruled against them.

Tuitel said gaining the definitive right to sue isn’t about money, but is about empowering individuals to hold airline officials accountable.

United Cerebral Palsy, an organization that educates and advocates for people with cerebral palsy, has heard all too often the trials of boarding an airplane with a disability.

“Removing a person with a disability from an airplane is both a basic civil rights issue and an equal opportunity issue,” said Chris Thomson, vice president of corporate affairs, in an email. “There is no way our society can move forward if someone is considered ‘too something’ to travel on an airplane.”

Making changes at the Congressional level could be tough. Congress could potentially amend the Air Carrier’s Access Act while approving the Federal Aviation Administration Reauthorization Bill. That is a bill that needs to be renewed every five years. However, Congress is two and a half years behind and there are so many contentions wrapped up in the legislation that a single congressperson bringing up the private clause amendment would likely go nowhere, Facey said.

Testifying before a committee would likely work best, he said.

Tuitel and Skeldon have been in contact with Kaptur’s office.

Kaptur wrote in an email that it troubles her that the number of disability-related complaints have risen 23 percent in one year.

“We simply must do more to protect the rights of individuals with disabilities and allow those who have had their rights violated to seek redress from the offending airline,” Kaptur wrote. “It is what is right and what is fair.”

The penalties

The department of transportation fielded 21,001 disability-related complaints in 2010. According to complaint logs, airline employees refused to board 209 passengers based on an array of disabilities, with the bulk of these clients being oxygen-dependent and 20 of them wheelchair bound.

Other common complaints include the airline’s failure to provide aid to customers who have trouble seeing or hearing, those who are quadriplegic, use a wheelchair or are mentally impaired.

Four airlines were slapped with fines in 2011. Delta Airlines had to pay the most — $2 million for a slew of “egregious” violations, as noted in the consent order. Atlantic Southeast Airlines was ordered to pay $200,000, Mesaba Aviation had to cough up $125,000 and Icelandair Group had to part with $30,000.

Nicholas Dainiak

The Delta fine provoked the company to make some changes, including investing tens of millions of dollars to equip facilities to better accommodate people with disabilities, according to the mitigations in the consent order.

The unpredictable flight

New Hampshire resident Chris Dainiak is following Tuitel’s pursuit for personal reasons. His 8-year-old son Nicholas was diagnosed with Batten Disease in 2008. That year, Chris and Heather Dainiak learned that this nervous system disorder would render their child weaker as he grew older, both physically and mentally. Nicholas didn’t exhibit any signs of illness until he was 4 years old, when he started having seizures.

As the disease progressed, the young boy needed more help moving around. Now he uses a special car seat to maintain a comfortable posture because he cannot hold himself up well.

Flying had never been a problem before Dec. 23. That’s when the family boarded their plane to head home after a trip to Disney World. After other passengers boarded, a flight attendant approached the Dainiaks and pointed out that Nicholas’ seat was not FAA approved.

Dainiak said that a supervisor told his family that they had to either get off the plane or relinquish the car seat.

“So there were 130 passengers on there and everyone’s witnessing this and they’re delaying the flight for take-off,” he said. “There was no other way to do this unless we physically (held) him up for three hours.”

And that is what Chris and Heather did.

Because the family had flown to Disney World with the same airline and without problems, Dainiak sees this not as an airline company problem, but as an issue with a lack of streamlined policies issue. Flying with a disability has unpredictable outcomes, he said, with the right to stay on board left to the “whim” of the flight attendant and discretion of the pilot.

“If the airlines were aware that they would be held responsible in a court by a jury that would look at all the evidence and determine whether someone was wronged or not,” he said. “Then they would have to look very carefully about the policies they put in place about arbitrary behavior.”

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